“He or She” after HB 1397

By Steve Klepper

Fear: Why on earth are you writing yet another post on the singular “they”? The people who want to hear you have heard you, and you’re annoying everyone else!

Joy: There are lawyers who are trans or have trans loved ones who may not feel comfortable speaking up! It’s Baltimore Pride!

Since I last advocated for the singular “they” in place of “he or she” on this blog in 2021, there have been 547 Maryland appellate opinions with the phrase “he or she.”

“He or she” phrase reflects the best of intentions, to include everyone, not just men, when legal opinions discuss the hypothetical person.

The unintentional effect, however, is to exclude people whose gender identity does not fit the “he or she” binary. If you or a loved one’s gender identity is nonbinary, “he or she” says “you don’t belong” or “your family doesn’t belong”

Perhaps it feels like “‘wokeness’ of the day,” to quote a Michigan Supreme Court Justice. Here in Maryland, however, “he or she” is legally inaccurate across the board as of October 1, 2024.

Following the Supreme Court of Maryland’s 2023 decision in Doe v. Catholic Relief Services, FreeState Justice undertook a comprehensive review of laws that mentioned one protected class but not another. The result is the Equal Opportunity for All Marylanders Act (HB1397), which the General Assembly passed and Governor Moore signed this year. That law, which takes effect October 1, protects gender identity and other protected characteristics across the Maryland Code.

Pronouns are essential to respecting gender identity. A survey by the Trevor Project, whose mission is to “end suicide among lesbian, gay, bisexual, transgender, queer & questioning young people,” highlights how proper pronouns save lives. Many trans and nonbinary young people “described feeling euphoric when others used their pronouns correctly—both by using the pronouns they identify with and avoiding pronouns they do not use.”

Yes, merely “avoiding pronouns [trans people] do not use” contributes to gender euphoria.

In other words, even if the singular “they” is like nails on a chalkboard to you, it remains a positive good to avoid “he or she.”

It is almost always possible to avoid using “he or she.” You can pluralize your way around the issue. Take this phrase: “If a Marylander wishes to obtain a driver’s license, he or she should visit the MVA website.” It easily becomes: “Marylanders who wish to obtain driver’s licenses should visit the MVA website.”

Pluralizing may be a half-measure, but at least it does no harm.

To be clear, the better way to promote gender euphoria is to do what the Colorado Supreme Court has done: expressly embrace the singular “they.” Pearson v. People, 502 P.3d 1003, 1005 n.2 (Colo. 2022) (“We are intentionally using the singular ‘they’ and ‘their’ throughout this opinion.”); Ronquillo v. EcoClean Home Servs., Inc., 500 P.3d 1130, 1132 n.1 (Colo. 2022) (“We are intentionally using the singular ‘they’ in this opinion.”). But pluralizing to avoid “he or she” is progress nonetheless.

As Justice Elizabeth Welch of the Michigan Supreme Court wrote in response to her colleague’s cries of “wokeness” in respecting a nonbinary litigant’s gender identity: “As society evolves so does its language,” and “a small change to an opinion, even if unrelated to the merits, can go a long way toward ensuring our courts are viewed as open and fair to all who appear before them.”